Opinion
No. 3-05-CV-0459-D.
March 18, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Joel Lynn Smith, appearing pro se, has filed an application to proceed in forma pauperis in this habeas case brought under 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner challenges his guilty plea and resulting conviction for possession of a controlled substance. His conviction and sentence were affirmed on direct appeal and state collateral review. Petitioner then filed this action in federal court. Process has been withheld pending a determination of the application to proceed in forma pauperis.
II.
The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a). The district court may authorize the commencement of a civil action without the prepayment of fees or costs "by a person who submits an affidavit . . . that [he] is unable to pay such costs or give security therefor." 28 U.S.C. § 1915(a)(1). The court must examine the financial condition of the applicant in order to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert. denied, 109 S.Ct. 364 (1988).The financial affidavit submitted by petitioner, who is no longer in custody, shows that he earns $1,000.00 per month as compensation for "work therapy" at the Dallas VA Medical Center. The filing fee for a habeas case is $5.00. 28 U.S.C. § 1914(a). The court concludes that petitioner is able to pay this fee without causing undue financial hardship. See also MISC. ORDER 13 at ¶ 9 (N.D. Tex. Feb. 1, 1977) (requiring habeas petitioner to pay filing fee if prison account and other resources exceed $50.00).
RECOMMENDATION
The application to proceed in forma pauperis should be denied. Petitioner should be ordered to pay the statutory filing fee by April 15, 2005. If he fails to do so, this case should be dismissed without further notice.